Our federal courts detain a significant number of defendants pending trial. A significant reason for the increased detention is a few provisions of The Bail Reform Act of 1984. Generally, the Act favors release pending trial unless the federal government can show that the defendant is a flight risk and/or a danger to the community. The Act, however, contains a few provisions creating a “presumption”, based solely on the charges, that a defendant is a flight risk and/or danger to the community. These presumptions have resulted in pretrial detention rates skyrocketing.
One of the most commonly cited presumptions is found in 18 U.S.C. § 3142(e)(3)(A). There, the statute provides that a defendant is presumed to be a flight risk and danger to the community if charged with an “offense for which a maximum term of imprisonment of ten years of more is prescribed in the Controlled Substances Act.” Because of this presumption, the federal government is more likely than not going to ask the Court to detain an individual pending trial, and many courts side with the government on the issue.
Recently, U.S. Senators Chris Coons (D-Del.), Dick Durbin (D-Ill), and Mike Lee (R-Utah), members of the Senate Judiciary Committee, introduced a bipartisan bill coined “Smarter Pretrial Detention for Drug Charges Act of 2020.” This act would eliminate the presumption contained in 18 U.S.C. § 3142(e)(3)(A) and could, if ultimately passed, result in more defendants being released pretrial.
For more information on Bail and Pretrial Detention, see our prior blog.